MARGARET MCLEAN: Bulger team knocks down prosecutors’ foundation

The trial of Whitey Bulger hit on all cylinders this week ranging from accounts of gangland executions by a hit man who doesn’t want to be called a hit man to a story of love and survival.

By Margaret McLean

The Patriot Ledger, Quincy, MA

By Margaret McLean

Posted Jun. 22, 2013 at 12:01 AM
Updated Jun 22, 2013 at 10:01 PM

By Margaret McLean

Posted Jun. 22, 2013 at 12:01 AM
Updated Jun 22, 2013 at 10:01 PM

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The trial of Whitey Bulger hit on all cylinders this week ranging from accounts of gangland executions by a hit man who doesn’t want to be called a hit man to a story of love and survival.

The government’s legal strategy: expose the violence, shock the conscience. An example came Friday from Frank Capizzi as he described riding in a car in 1973 when “a firing squad hit us. ... For two-and-a-half minutes about one hundred slugs hit the automobile and it imploded.”

Capizzi testified about the condition of the guy next to him: “My hand went into his neck where his head should’ve been.”

The government is building its case, brick by brick. The legal strategy behind calling former hit man John Martorano early in the trial is to lay the foundation of gangland violence dating back to the 1960s and to prove that Bulger was a hands-on killer and ruthless leader of the Winter Hill Gang. Martorano implicated Bulger in several murders.

Jurors took notes as Martorano explained that a gangland hit involves loading up on military-style weapons, disguises and cars. He defined terms such as ‘‘boiler,’’ which is the car containing the shooters, and said when they “broadside” somebody, it means they’re pulling alongside the target car to shoot the occupants. They use “crash cars” to cause an accident and distract the police if necessary.

Martorano came across as business-like, showing little remorse as he testified about multiple slayings. His description of murders during a snowstorm was particularly chilling. He had arranged to meet a man named Herbert Smith alone, and when he saw the car there were three people inside. He testified, “I shot three times and killed three people. My ride didn’t pick me up so I had to walk and wash up in the snow.” The victims were Smith, Elizabeth Dickson, 19, and Douglas Barrett, 17.

What goes up must come down. The government’s bricks came tumbling down with stellar cross-examination of Martorano by defense attorney Hank Brennan. He hammered Martorano with questions like these:

“You are a mass murderer?”

“You’ve killed young people?”

“You’ve killed friends?”

“You’ve killed strangers?”

“Did you look your friend in the eye before you murdered him?”

The key to cross-examination is controlling the witness with short, leading questions. Brennan succeeded by exposing Martorano as a cold-blooded, self-serving killer. He focused on the deal Martorano forged with the government in exchange for his testimony against Bulger: 12 years for more than 20 murders; $20,000 for start-up expenses after getting out of prison; $250,000 on a movie option; more than $50,000 on a book deal; and another $250,000 if they make the movie.

With that deal, the defense argues, he’ll say whatever the government wants him to say.

Page 2 of 3 - After Martorano, the government dusted off the toppled bricks and continued building. At one point, prosecutors had to deal with an uncooperative witness, Ralph DiMasi. He refused to speak with lawyers and planned on taking the Fifth. In the long run, he couldn’t help himself: “You want the story? I’ll tell you the story,” he said.

DiMasi explained how he was riding with Billy O’Brien when another car pulled up and “people started shooting.” DiMasi got hit eight times, but managed to jump out of the car and chase the shooters as they drove off. The prosecutor expressed surprise, as did one of the jurors.

On cross-examination, defense attorney Jay Carney asked: “In prison you learned that when some people cooperate, they get extraordinary benefits?”

“Oh, absolutely!” DiMasi answered.

He had served more than 21 years for an attempted armored car robbery. The poor guy was “pinched” before he had the opportunity to commit the crime.

DiMasi served his time but he’d heard about guys walking the street after killing more than 20 people (a reference to Martorano). “That’s the way the justice system works!” he said. DiMasi said he knew a guy “who killed only one person and got the electric chair.”

Carney thanked the government’s witness. He played right into Carney’s theory that the government controls the puppet strings if you’re willing to cooperate.

The government scored points with a story that pulled at the heartstrings. Diane Sussman de Tennen testified about taking a ride in Michael Milano’s new car with her boyfriend, Louis Lapiana, in 1973. As they drove, Milano and Lapiana were teasing each other about a chess match. Suddenly, “the car was hit with machine gun bullets. I ducked,” de Tennen said.

Milano died, and Lapiana suffered for the next 28 years as a paraplegic on a respirator. The shooting was a mistake. Milano had the bad fortune of looking exactly like a guy who was a Winter Hill Gang target. De Tennen eventually married another man and had children, but insisted that Lapiana was always a part of their lives. De Tennen and her family cared for and became emotionally connected to Lapiana until he died in 2001. That’s when the juror cried.

Next week, expect testimony about Bulger and the FBI’s top-echelon informant program. The defense is gassing up its jackhammer.

Margaret McLean is a former prosecutor, a law professor at Boston College and a resident of Norwell. She is a legal analyst and host of the nationally syndicated show “It’s A Crime Radio.” She is the author of two legal thrillers, “Under Oath” and “Under Fire.” She is co-writing a book about the trial with Jon Leiberman titled “The Gavel Strikes: U.S. versus James ‘Whitey’ Bulger.”